FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 30, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12662

Non-Argument Calendar

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D. C. Docket No. 05-00018-CR-4

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GLENN MCCLOUD, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(November 30, 2005)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Appellant Glenn McCloud appeals his 240-month sentence for distribution
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of cocaine, in violation of 21 U.S.C. § 841(a)(1). McCloud appeals the district

court’s use of judge-found facts to increase his sentence under the United States

Sentencing Guidelines (“guidelines”) system, pursuant to United States v. Booker,

543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). McCloud also contests

the district court’s finding that facts used to increase his sentence were proven by a

preponderance of the evidence.

McCloud argues on appeal that the district court erred by enhancing his

sentence based on facts that were neither admitted by him nor proven to a jury

under a mandatory guidelines system. Specifically, McCloud argues that his base

offense level should not have been calculated based on cocaine seized from the two

apartments he rented for use by himself and his co-conspirators in their drug

dealing operation, and should not have been enhanced by the presence of a

handgun during the charged offense, because he did not admit possession of the

additional cocaine or the handgun, and those facts were not proven to a jury. 

McCloud also contends that the district court applied the guidelines as mandatory,

rather than advisory, because the court did not explicitly state that they were

advisory, or consider other factors in fashioning his sentence.

We review preserved-error Booker claims on appeal de novo, but reverse

only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)
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(citation omitted). There are two harmless error standards; one is applicable to

Booker constitutional errors, and the other to Booker statutory errors. United

States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). A Booker constitutional

error violates an individual’s Sixth Amendment right to trial by jury, where a judge

enhances an individual’s sentence based solely on judicially found facts pursuant

to a mandatory guidelines system. Paz, 405 F.3d at 948. However, “the use of

extra-verdict enhancements in an advisory guidelines system is not

unconstitutional.” United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), 

cert. denied, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005). Booker statutory error

occurs when the district court applies the guidelines as mandatory, rather than

advisory. United States v. Shelton, 400 F.3d 1325, 1329-30 (11th Cir. 2005).

After reviewing the record, we conclude that the district court did not

commit Booker constitutional or statutory error because it applied the guidelines as

advisory, rather than mandatory. The record demonstrates that during McCloud’s

Rule 11 hearing prior to sentencing, the district court explicitly acknowledged that

the guidelines were advisory, but ultimately chose to sentence him to the statutory

maximum within the guidelines, observing that McCloud could easily have

received a much harsher sentence if not for the benefit of his plea agreement.

McCloud also argues on appeal that the government did not meet its burden
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of proving by a preponderance of the evidence that he should be held accountable

for the additional cocaine seized from his apartments and included in his relevant

conduct, or for the handgun that was present during the charged offense and used

to enhance his sentence. McCloud contends that the evidence connecting him with

the apartments where the cocaine was seized was insufficient, in the absence of any

physical evidence directly linking him to the cocaine. He also argues that his

sentence should not have been enhanced for possession of a firearm because he

never admitted to that conduct.

Although Booker has rendered the sentencing guidelines merely advisory,

the standards used to review the application of the guidelines remain the same. 

United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We review the

district court’s factual findings for clear error and its application of the guidelines

to those facts de novo. United States v. Trujillo, 146 F.3d 838, 847 (11th Cir.

1998). “When a defendant objects to a factual finding that is used in calculating

his guideline sentence, such as drug amount, the government bears the burden of

establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398

F.3d at 1296 (citation omitted). 

With respect to offenses involving contraband (including controlled

substances), the defendant is accountable for all quantities of

contraband with which he was directly involved and, in the case of a

jointly undertaken criminal activity, all reasonably foreseeable quantities of
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contraband that were within the scope of the criminal activity that he jointly

undertook.

U.S.S.G. § 1B1.3, comment. (n.2). 

Section 2D1.1(b)(1) provides a two-level enhancement “[i]f a dangerous

weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “The

adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,

comment. (n.3). “Once the prosecution has shown by a preponderance of the

evidence that the firearm was present at the site of the charged conduct, the

evidentiary burden shifts to the defendant to show that a connection between the

firearm and the offense is clearly improbable.” United States v. Hall, 46 F.3d 62,

63 (11th Cir. 1995).

After reviewing the record, we conclude that the district court did not clearly

err by finding that a preponderance of the evidence supported basing McCloud’s

offense level on additional cocaine seized from his apartments, or by enhancing his

sentence based on the presence of a handgun during the offense conduct. The

government established McCloud’s legal possession of the two apartments through

paperwork, intercepted phone conversations, his possession of keys to both

apartments at the time of his arrest, and police observation of McCloud or his

vehicle at each apartment on the day of his arrest, prior to the searches. McCloud
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did not present any evidence that he was not in legal possession of the apartments,

but instead established only that no physical evidence seized during the searches

linked him to the particular drugs that were found in the apartments. The district

court did not need evidence linking McCloud to the particular drugs seized from

his apartments in order to hold him accountable for those drugs at sentencing

because they were reasonably foreseeable drug quantities within the scope of

McCloud’s joint criminal undertaking.

A preponderance of the evidence established that McCloud’s co-conspirator

possessed a firearm during the charged offense drug sale, and another firearm was

found during the search of one of McCloud’s apartments. McCloud did not

present any evidence that the firearms were not connected to the charged offense or

his relevant conduct, so the district court did not clearly err by enhancing his

sentence based on their presence.

For the foregoing reasons, we affirm McCloud’s sentence.

AFFIRMED.